Kinloch v Her Majesty's Advocate (Scotland)

The Supreme Court considered whether covert police observations carried out without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 engaged the appellant's rights under article 8 of the European Convention on Human Rights and, if so, whether leading evidence obtained by that surveillance would be incompatible with article 6 and therefore ultra vires under section 57(2) of the Scotland Act 1998. The court held that movements and activities in public places, even if recorded covertly by the police as part of an investigation, did not give rise to a reasonable expectation of privacy in the circumstances of this case and so did not infringe article 8. Because no article 8 interference was established, the court further held that the leading of the evidence was not incompatible with article 6. The court also noted a preliminary jurisdictional difficulty — that the devolution minute as framed appeared not to raise a devolution issue within paragraph 1(d) of Schedule 6 to the Scotland Act 1998 — but, by reason of the Crown and the Appeal Court not opposing the grant of leave, heard the substantive human rights question.

Background and procedural posture:

• The appellant was convicted in the Sheriff Court at Glasgow of offences under the Proceeds of Crime Act 2002 (money-laundering). A devolution minute alleged that police had conducted covert surveillance without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 and moved that evidence obtained thereby be excluded.
• The sheriff refused the devolution minute and refused leave to appeal; the first and second sifts refused leave; the Appeal Court later granted leave to appeal to the Supreme Court without reasons.

Nature of the application: The appellant sought to challenge (i) whether the police observations breached his article 8 right to respect for private and family life and (ii) whether, if article 8 was breached, the leading of the evidence at trial was incompatible with article 6 and thereby ultra vires under section 57(2) of the Scotland Act 1998. The appellant also asked the court to re-examine the correctness of Gilchrist v HM Advocate.

Issues framed by the court:

1. Whether the covert observations amounted to an interference with article 8.
2. If so, whether the leading of the evidence was incompatible with article 6 and ultra vires in terms of section 57(2) of the Scotland Act 1998.

Reasoning and subsidiary findings:

• The court observed that the jurisdiction under Schedule 6, paragraph 1(d) to determine whether an act of a member of the Scottish Government is incompatible with Convention rights did not directly cover acts of the police, who are not members of the Scottish Government; this raised a preliminary question whether a devolution issue had truly been raised. The court nevertheless proceeded to consider the substantive human rights questions because the Crown had not opposed leave and the Appeal Court had given leave.
• On article 8, the court applied Strasbourg authorities and emphasised that private life is a broad concept judged on the facts of each case. It held that covert observation of a person’s movements in public places, where he had no reasonable expectation of privacy (entering and leaving cars, moving in public streets and entering flats visible to neighbours), did not constitute an interference with article 8 in the circumstances of this case. The court endorsed the distinction between the lawfulness of the police conduct and the constitutional separation between police acts and the act of the Lord Advocate in leading evidence.
• Because no article 8 infringement was established, the court answered the article 6 question in the negative: there was no incompatibility in leading the evidence that would render the Lord Advocate’s act ultra vires under section 57(2).
• The court rejected submissions that Gilchrist should be treated as wrongly decided and concluded that Gilchrist was correctly decided on the article 8 issue.

Disposition: The Supreme Court dismissed the appeal.

Appeal dismissed. The court held that covert police observations of the appellant in public places did not amount to an interference with his right to respect for private life under article 8, and therefore leading the evidence was not incompatible with article 6 nor ultra vires under section 57(2) of the Scotland Act 1998. The court noted a preliminary jurisdictional concern that the devolution minute did not clearly raise a Schedule 6 devolution issue, but heard the substantive point given the procedural history and parties' conduct.

Conviction on indictment in the Sheriff Court at Glasgow; a devolution minute and refusal by the sheriff to grant leave to appeal; refusal of leave at first and second sifts; the Appeal Court granted leave to appeal to the Supreme Court (leave granted on 2 November 2011, no reasons given); appeal heard by the Supreme Court which dismissed the appeal. Noted authorities in procedural context include Follen v HM Advocate 2001 SC (PC) 105 and Hoekstra v HM Advocate (No 3) 2001 SC (PC) 37.